"The Archive" accused thousands of violating its copyright on 4 porn films.

On Friday, judges at the Regional Court of Cologne (PDF, German) have taken the unusual step of revoking (Google Translate) at least 50 of their own court orders in a strange intellectual property dispute.

Those orders, issued over the course of the last few months, had compelled Deutsche Telekom (a major German ISP) to handover user names and addresses corresponding to over 50,000 German IP addresses that were accused violating the copyright of a handful of porn films. Each order was approved by a three-judge panel, which unanimously had to agree to send the order to Deutsche Telekom.

Those names and addresses were then used to send letters to tens of thousands of Germans, accusing them of copyright infringement of one of four porn films. The letters went on to order them to stop viewing the films on the streaming site Redtube.com (NSFW), and pay €250 ($345) to a shady Swiss company called The Archive. That money, the letter stated, would put a stop to future litigation.

Further Reading

Berlin law firm defends against claimed predatory behavior by "The Archive."

At least two law firms in Cologne and Berlin have taken up the charge of representing people that they feel have been wrongly accused of copyright infringement by a Regensburg-based law firm, Urmann and Colleagues (U+C). Since the summer, U+C has requested 1,000 IP addresses in 50 different applications to the Cologne court. Neither The Archive nor U+C have responded to Ars’ request for comment.

The court appears to have erred in its judgment, believing that these cases involved file-sharing websites—such cases happen very regularly in Germany. But, as these accusations involve streaming, rather than direct infringement or downloading, the judges now say (PDF, German) that individuals cannot be held liable for what appeared on a streaming site, rather than a download or file-sharing site.

“This is, in my point of view, a groundbreaking decision,” said Christian Solmecke told Ars. He’s a Cologne-based lawyer whose firm is representing 600 Germans (Google Translate) that have received such letters.

“This is a really unusual decision,” he added. “But as I’ve said, the court did not read the documents correctly in the first instance and they thought that these are the same documents like file-sharing documents. There are 600 decisions in Cologne per month for file-sharing normally.”

Cologne is often the jurisdiction for such cases as Deutsche Telekom sits in this particular jurisdiction.

“The affected users can immediately appeal these decisions—the lower court then has the opportunity to review their decision,” Dominik Boecker, a German IT lawyer not involved in this case, told Ars.

The Archive has apparently had “procedural representational rights” to the “Amanda’s Secrets” film, and a few other films, from a company called Matrazensport, since July 2013. According to The Archive’s German-language business filing with Swiss authorities, its primary business is the “acquisition and evaluation of audio media and audio-visual media of any kind.”

Solmecke added that he believes that this is the beginning of the end for this entire saga, but added that Cologne judges are set to make further rulings in January 2014.

“Where the money is in 18 months, I don’t know. It could be gone.”

Heise.de, a German tech news site, reported (Google Translate) earlier this month that some who have received these warning letters have checked their browser histories and found a series of domain forwards

As Heise concluded: "So it is possible, for example, for under $30 to buy 10,000 German IP addresses diverted from porn sites to hit a given destination URL. In this case the URL was obviously 49655.movfile.net, supplied by specifically German traffic."

Despite the fact that TrafficHolder says on its website that it has “round the clock” customer service Monday through Friday, no one picked up the listed Los Angeles phone number when Ars called Friday afternoon. TrafficHolder also did not immediately respond to e-mail.

If this is indeed the case, and someone falsely induced Germans to click on and watch this movie, then Solmecke told Ars, this could be a crime, and his clients could potentially sue whoever is responsible to get their lawyer’s fees reimbursed. However, because The Archive is in Switzerland—outside of Germany, and the European Union—this could take time, he said.

“If I sue [The Archive] now, to get the money, it would take a year until I can start the enforcement process, and that takes another half year,” he said. “Where the money is in 18 months, I don’t know. It could be gone.”

And which sites generated these TrafficHolder pop-ups? That too is a mystery.

“This is the biggest question: I need more information about it,” Solmecke added. “But what I need are screenshots, perhaps of the browser history. I need at least three or four screenshots to prove that this is true and to give them to the prosecutor. This is very very relevant if they never clicked on Redtube and were pushed onto Redtube.”

Promoted Comments

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

I don't think we really know that yet. One has to wonder what other motivation could have existed to do so, though.

Yeah - don't let the assclown John Steele get a hold of these ideas. Imagine his glee when he could put up a few forwarding urls nested inside each other and generate 'hits' to a streaming honeypot site. Fortunately the courts in Germany decided to re-read what was actually going on and put a pretty quick stop to this particular copyright fleecing of the public.

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

I don't think we really know that yet. One has to wonder what other motivation could have existed to do so, though.

How did they get the ip addresses in the first place if they didn't buy the redirect ads? They handed ips to the court so they could get addresses, so unless redtube gave them the ip list they had to get it some other way.

The first thing I thought of when reading this is that these guys are likely leaking/distributing this stuff themselves and then suing people who they forced to watch it.

Their very business description seems to support this. They collect copyrighted videos in order to sue people for viewing them. Since finding those people is work it is easier to just let the content get out there and sue people who watched it.

An aside: am I the only one who cringes when they see "German" and "porn" in the same sentence?

So far, the european way of doing things seems to have a lot more common sense. When they realize a mistake, they go out of their way to fix it. The charges are for <$500 not tens of thousands of dollars

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

I don't think we really know that yet. One has to wonder what other motivation could have existed to do so, though.

To me it pretty much seems to be the short-circuit version of the Prenda-game, where they forced people onto their bait. A lot of connections currently point towards the described scheme being accurate. I can't recall it off hand, but there's some names you can follow from the law firm to the IT service company logging the IPs and from that IT service company to The Archive. The IT company has supposedly been founded just days before they got active in that case, too.If a dog shat on your noise this couldn't smell stronger.

Concerning the way they handled the case, DMCA probably didn't apply. But practically things get handled similarly in Germany and every even just halfway serious host or platform would honor a notice that they host unlicensed content and take it down. In an interview Urmann replied to that specific question, that takedown notices would be practically useless, as the content would get reuploaded faster than they could issue such notices. And hence and to protect their clients from financial damage, they have chosen this route.

The interview with Urmann is also very interesting. (http://www.zeit.de/digital/internet/201 ... alt-urmann)There's some Prenda-class asshattery in there. When directly asked about the legitimacy of the court's decisions to issue a subpoena to ISPs, he pretty much plainly replies that he does not care. Since there's no fruit of the poisonous tree doctrine in Germany, that evidence would be valid before a court anyways. In fact, it would be challenging or second guessing a court and while a single decision might be wrong, he says they got over 60.

It's also interesting to read their argument about why watching a stream is infringing. They argue that for displaying the content, the PC buffers the video and that the copy in the buffer is infringing. That argument has never been brought in front of a judge, but if it would prevail, which is very unlikely, it could basically mean that browsing the internet is impossible. I'd be hard pressed to make up an argument why this should not apply to any other content and that would mean, as watching any site copies the contents in some form into a buffer on the accessing device in practice. Now if you would read a news site, you would have made an unlicensed copy of their articles.This is so obviously braindead that I'm quite sure they'll fall on their face with that. But I guess, just like Prenda, they never wanted a case, they wanted to extort scared or shamed people.

@ The Article / CyrusI think there might have been some slight misunderstanding reading the court's public statement. I can't see where they actually revoked any orders. The only thing I read is that they are now of a different opinion and would, in hindsight, tend to not grant the subpoenas. It's a pretty unusual thing for a German court to issue any such notice that holds a statement as clear as this regarding any ongoing case, but as far as I can tell it's not more than that: an opinion that has no legal implications.They even explicitly mention that there's been no final decisions about the complaints filed.

So far, the european way of doing things seems to have a lot more common sense. When they realize a mistake, they go out of their way to fix it. The charges are for <$500 not tens of thousands of dollars

The essence of the DMCA is that a website is liable if it doesn't immediately (I believe it is 24 hours?) remove content upon notification even if that content was uploaded by a third party, a user, as opposed to the people behind the website itself.

The result is that you could sue Google for a ton of money if you anonymously uploaded your own video on Youtube, notified Youtube/Google and demand as the author that they should take it down, and then they didn't take it down immediately: then Youtube/Google, not the (anonymous) uploader could be sued and convicted of infringement of copyright.

As a consequence, Youtube has a choice: it can either hire lots of people to check whether or not a video is fair use within 24 hours of notification—and risk a misjudgement by one of these juridical experts—, or it can simply take down the video upon notification, whether or not the demand is even remotely legitimate. The cost and the risk of checking notified videos is of course too high—if even that many lawyers exist in America—, so Youtube is forced to take down every video about which they receive a complaint.

I strongly doubt whether this rule exists in other countries. At least it does not exist in my country, where websites only become liable if they evidently collaborate with the infringer in some way (not sure exactly how that works), and not within 24 hours.

This, in combination with the fact that "damages" for copyright infringement are a *lot* lower, have as a result that websites don't blindly take down content upon notification: they will have ample opportunity to calmly and reasonably assess the demand in good time without running huge risks.

So far, the european way of doing things seems to have a lot more common sense. When they realize a mistake, they go out of their way to fix it. The charges are for <$500 not tens of thousands of dollars

AFAIK, the charges in question were not set by any judge. They're just the settlement The Archive requested in their letters. It's the from the classic extortion troll playbook: If your claims don't have merit, don't ask for too much. That way, victims are more likely to settle for a comparatively small amount than to risk going to court over it.

The next sleezebag "porn owner" that walks into a court of law needs to be treated like every other twitching crackhead scammer would be, and told to prove their allegations with hard evidence, not just some goddamn numbers they pulled out of their ass to run an extortion racket.

I walked into court, and claimed you had stolen my stuff, but offered nothing but the phone number at your house as proof, do you think the judge should laugh at me, or fine me for abusing the court? The one thing that should not even be conceivable is for the judge to grant me a subpoena to search your house.

But this time it's on a computer, so it must be legitimate, right? Right? It's an IP address after all, and we all know they are infallible personal ID, and only ever get hauled out by perfectly honest folks in the most genuine cases.

Until the courts stop being gullible fucking assclowns about this issue, we are all in grave risk from the next scammer and the next clever scammer after him, because there will always be a clever procedural gotcha that makes the $250 extortion cheaper than legal self defense. The only answer here lies with courts waking the fuck up to the last 50 years of progress. I'm tired of walking around with a bruised head from fucking facepalming, this shit is not rocket science, and that German court still hasn't fucking clued in to the fact that even if this was a set of file sharing accusations, IP addresses proffered by scumbags are not fucking evidence of anything, except probably an extortion racket.

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

Trafficholder seems to be an adult ad-service ... like a sort of doubleclick for porn. The Url "hit.trafficholder.com" is probably the url that responds when there is a "click" on the ad ... or a hit. Don't know that particular service but it is likely that represents a payable event for whatever affiliate generated the traffic.

So, my guess is that the *original* point of redirecting the traffic was to rack up a bunch of ad revenue. There's not enough information to really have a sense for what happened. Anything from a phishing email to click-jacking. Just this week I cleaned up a .htaccess hack that was redirecting mobile traffic visiting a company's web site through an ad-service in Russia that was feeding them a bunch of porn ads (but not their corporate desktops) ... attacker's affiliate id was set in a cookie.

I think the lawsuit's premise is that the file hosted on RedTube was not properly licensed, therefore anyone who viewed it had infringed. Working backwards, anyone who had requested that stream (which would likely be in their browser history) ... on purpose or through some coercive process ... must be an infringer.

If that's correct, the incentive (and ability) to monetize pirated content led to attackers redirecting a bunch of people to such content - gaming ad services to capitalize on it. In turn this created the huge pool of potential targets for the copyright trolling.

Am I the only one who thinks these judges should face some kind of penalty for making over 600 erroneous rulings?

They didn't make 600 erroneous rulings. They made a few (one?) erroneous ruling in a set of 600 rulings per month. This one erroneous ruling of course involved giving out 50,000 addresses of innocent people, but well, it was only one false ruling.

Wasn't the basis for the order that RedTube is a file sharing site? As far as I know, it's a streaming site, which is a completely different thing. Wasn't that perjury on The Archive's part?

How is streaming different than file-sharing? You could upload parts of a Disney movie to YouTube, someone could then use YouTubeInMP4 to download those pieces, then use Movie Maker to stitch them together.

As for RedTube, it seems they have a Community video sharing section from a button on the upper-right side of their GUI. I'm not sure how in-depth its feature set is, but the same concept applies. In any case, the service provider should be the one to get in trouble for not removing it due to DMCA, not the viewer. They had no way to tell there was a copyright problem.

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

U+C argued that their client, ”The Archive“ didn't see any point in filing a DMCA takedown notice, because the content would usually be back online shortly after. Therefore they decided to go after the users. As a deterrent, I suppose. Very fishy anyway.

Wasn't the basis for the order that RedTube is a file sharing site? As far as I know, it's a streaming site, which is a completely different thing. Wasn't that perjury on The Archive's part?

How is streaming different than file-sharing? You could upload parts of a Disney movie to YouTube, someone could then use YouTubeInMP4 to download those pieces, then use Movie Maker to stitch them together.

As for RedTube, it seems they have a Community video sharing section from a button on the upper-right side of their GUI. I'm not sure how in-depth its feature set is, but the same concept applies. In any case, the service provider should be the one to get in trouble for not removing it due to DMCA, not the viewer. They had no way to tell there was a copyright problem.

In German copyright law the definition is pretty clear:

File sharing in that sense means making available the product via Bittorrent, ED2K, Kazaa and whatnot. There are private agencies that employ leech clients to document such actions.

The other (very controversial) issue are files downloaded from ”obviously illegal“ websites, because no one can define that and no one tried to sue anyone over it, yet, therefore no precedent. Redtube with its DMCA complaint sections is probably not illegal under German law.

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

Trafficholder seems to be an adult ad-service ... like a sort of doubleclick for porn. The Url "hit.trafficholder.com" is probably the url that responds when there is a "click" on the ad ... or a hit. Don't know that particular service but it is likely that represents a payable event for whatever affiliate generated the traffic.

So, my guess is that the *original* point of redirecting the traffic was to rack up a bunch of ad revenue. There's not enough information to really have a sense for what happened. Anything from a phishing email to click-jacking. Just this week I cleaned up a .htaccess hack that was redirecting mobile traffic visiting a company's web site through an ad-service in Russia that was feeding them a bunch of porn ads (but not their corporate desktops) ... attacker's affiliate id was set in a cookie.

I think the lawsuit's premise is that the file hosted on RedTube was not properly licensed, therefore anyone who viewed it had infringed. Working backwards, anyone who had requested that stream (which would likely be in their browser history) ... on purpose or through some coercive process ... must be an infringer.

If that's correct, the incentive (and ability) to monetize pirated content led to attackers redirecting a bunch of people to such content - gaming ad services to capitalize on it. In turn this created the huge pool of potential targets for the copyright trolling.

This is th FAQ for trafficholder, but it looks like you have to understand what they do to understand the FAQ.

Wasn't the basis for the order that RedTube is a file sharing site? As far as I know, it's a streaming site, which is a completely different thing. Wasn't that perjury on The Archive's part?

How is streaming different than file-sharing? You could upload parts of a Disney movie to YouTube, someone could then use YouTubeInMP4 to download those pieces, then use Movie Maker to stitch them together.

As for RedTube, it seems they have a Community video sharing section from a button on the upper-right side of their GUI. I'm not sure how in-depth its feature set is, but the same concept applies. In any case, the service provider should be the one to get in trouble for not removing it due to DMCA, not the viewer. They had no way to tell there was a copyright problem.

That's kind of what I'm saying, they're going after end users rather than RedTube because... Uh...

And they're doing so on the rather sketchy basis that RedTube is a filesharing site, I'm not completely familiar with the law, but in general parlance file sharing site refers to things like torrents or frostwire in which the user is also uploading files to other people. The other possible avenue I've heard mentioned is that people can be sued for visiting "obviously illegal" sites, which seems like a rather ambiguous definition, but since much of the content is uploaded by the creators, much like Youtube, it seems that a large percentage, probably a majority of the sites use cases are legal.

If, as I believe is the case, the original orders were put out based on The Archive's assertion that RedTube is a filesharing site (and the obscured links give me reason to believe that The Archive's intent was to fool the judge) isn't that perjury?

This showcases the principle of flooding courts - or similar entities, like patent offices - with applications. At some point, they just stop reading and grant on good faith alone. Which is quickly followed by exploitation of said faith.

The case at hand is fishy in every aspect, and it's making waves in Germany. Yet, the lawyers of U+C don't really have to be too afraid. Much like Prenda Law. Once you're inside, you really have to do outlandish things for the system to bring the hammer down on you. Birds of a flock...

I'm not sure I follow. Was The Archive routing people to RedTube to watch a video owned by The Archive just so The Archive could sue them for watching it? Sounds like something Prenda would do. If The Archive is legitimately concerned, why not send a DMCA letter to RedTube?

This is in Europe. DMCA is a US law...

RedTube may or may not be a European company though, and may have servers in the US anyway. Whatever the case may be, RedTube DOES respond to DMCA notices, they have a page on their site about it you can find easily by Googling for RedTube DMCA.

No, the real reason is that wouldn't make them money. Threatening to sue people and demanding settlements will.

The other (very controversial) issue are files downloaded from ”obviously illegal“ websites, because no one can define that and no one tried to sue anyone over it, yet, therefore no precedent. Redtube with its DMCA complaint sections is probably not illegal under German law.

"Obviously illegal" website ... do they mean the content of the website being illegal, or the website itself? That is a very ambiguous term which suggests not being MPAA-approved. If there is significant non-infringing use, such as can be with 'The Pirate Bay' helping link the Internet community together (without actually storing the files themselves), then that wording in the law has no teeth and should probably be rewritten.

The other (very controversial) issue are files downloaded from ”obviously illegal“ websites, because no one can define that and no one tried to sue anyone over it, yet, therefore no precedent. Redtube with its DMCA complaint sections is probably not illegal under German law.

"Obviously illegal" website ... do they mean the content of the website being illegal, or the website itself? That is a very ambiguous term which suggests not being MPAA-approved. If there is significant non-infringing use, such as can be with 'The Pirate Bay' helping link the Internet community together (without actually storing the files themselves), then that wording in the law has no teeth and should probably be rewritten.

As I said, there is no precedent, yet, and the law itself is pretty unclear, but it seems to refer to the source website. They seem to have tried to rule Warez sites illegal that host their content on-site. Link sites are probably safe, because the content itself is hosted on share hosters, which have a DMCA complaint section. There is general understanding that downloading a file isn't a copyright violation in itself, because the user has to open it, in order to confirm its copyrighted content, since he might have been tricked into downloading a copyrighted work. Just judging by its file name isn't enough, and there is a good in dubio pro reo protection. Which doesn't apply to torrents, because courts seem to think that those are used solely for illegal purposes.

AFAIK, the charges in question were not set by any judge. They're just the settlement The Archive requested in their letters. It's the from the classic extortion troll playbook: If your claims don't have merit, don't ask for too much. That way, victims are more likely to settle for a comparatively small amount than to risk going to court over it.

Correct. In addition to the settlement you have to sign a contract that you will never do this again, and pay a much higher sum (e.g. 5000€) if you do.

"Obviously illegal" website ... do they mean the content of the website being illegal, or the website itself?

Illegal content is something else and not covered by copyright law. This applies to the way you get the content. If the source is illegal and a regular person can reasonably tell (e.g. if you get to download a movie for free on opening day), then copying the content is illegal.

Sure, that might sound ambiguous, but sometimes reality is, too. There's often no way for a consumer to determine if he paid for legally or illegally sourced content. If he acts in good faith, that needs to be a valid defence.